Appeal from the Iowa District Court for Pottawattamie County, Craig M. Dreismeier, District Associate Judge.
Defendant appeals his conviction following the denial of his motion to suppress.
Frank Robak of Robak Law Office, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, Matthew Wilber, County Attorney, and Thomas Nelson, Assistant County Attorney, for appellee.
Considered by Doyle, P.J., and Tabor and Bower, JJ.
Police officers found Wayne Solomon passed out in the driver seat of his truck in the middle of Sixteenth Street in Council Bluffs. The district court found him guilty of operating while intoxicated (OWI). Solomon challenges the denial of his motion to suppress—claiming invocation of implied consent for chemical testing was improper because the officer did not have reasonable grounds to believe Solomon was operating a motor vehicle under Iowa Code section 321J.6 (2011). Solomon also claims the police violated his rights under Iowa Code section 804.20 because he did not have a reasonable opportunity to call his attorney.
Because the evidence supports the district court's conclusion that Solomon was operating or had operated the truck and that the officer facilitated Solomon's request to call his lawyer, we find no grounds for suppression of his test refusal. Therefore, we affirm.
I. Background Facts and Proceedings
In the late night hours of May 2, 2011, Council Bluffs Police Officer Joshua Hughes responded to the report of a driver passed out behind the wheel of a pickup truck stopped just north of the railroad crossing at Sixteenth Street and Twenty-third Avenue. When Officer Hughes arrived at the scene he found the truck's engine running and Wayne Solomon asleep in the driver's seat. Hughes knocked on the truck's window several times.
As Solomon woke up, he "appeared confused" and "wasn't very coherent." After Solomon opened the truck door, Hughes noticed an odor of alcohol. The officer asked Solomon if he had been drinking and Solomon responded: "a little." Solomon almost fell over as he exited the truck.
By this time, Hughes was joined at the scene by Officer Darren Budd. Officer Budd noticed Solomon had a difficult time standing. Officer Budd performed the horizontal gaze nystagmus (HGN) test, recording five of a possible six indicators for intoxication. The officers then allowed Solomon to place a call to his attorney on his cell phone, but Solomon told them he was unable to reach the attorney. After that, Solomon refused to participate in further field sobriety testing.
The officers asked Solomon to take a preliminary breath test (PBT), but "[h]e refused to blow through the straw as he was instructed to do." The officers arrested Solomon at 11:41 p.m. and transported him to the jail. The officers allowed Solomon's wife to take care of his pickup truck.
At the jail, Solomon asked to call his attorney Frank Robak. At first, Officer Budd directed Solomon to the telephone and phone book, advising him to dial nine to reach outside numbers. Solomon told the officer he could not read the phone book without his glasses, so Officer Budd looked up Robak's number for Solomon. The officer then dialed the attorney's "after hours" number. Solomon informed the ...